Public Choice (2009) 139: 443–459 DOI 10.1007/s11127-009-9403-5 The calculus of piratical consent: the myth of the myth of social contract Peter T. Leeson Received: 6 August 2008 / Accepted: 22 January 2009 / Published online: 4 February 2009 © Springer Science+Business Media, LLC 2009 Abstract Is a genuine social contract mythical? I argue that pirates created genuine social contracts that established a system of constitutional democracy based on the same decision- making calculus and with the same effects that Buchanan and Tullock’s contractarian theory of government describes in The Calculus of Consent. Pirates’ constitutional democracy is the “holy grail” of social contract theory. It demonstrates that the contractarian basis of constitutional democracy is more than a mere analytic device or hypothetical explanation of how such a government could emerge. In pirates’ case, Buchanan and Tullock’s social contract theory describes how constitutional democracy actually did emerge. Keywords Pirates · Social contract · Calculus of consent · Constitutional democracy 1 Introduction Everyone knows that a genuine social contract—a written, unanimous agreement created by individuals in the state of nature with the express purpose of establishing political authority—is myth. We learn the work of Thomas Hobbes (1651), John Locke (1690), and Jean-Jacques Rousseau (1761), and at the same time learn that no society ever actually cre- ated its government through social agreement. As Emile Durkheim (1933: 202) put it, “The conception of a social contract . has no relation to the facts . Not only are there no so- cieties which have such an origin, but there is none whose structure presents the least trace of contractual organization.” Thus, in contemporary contractarian scholarship, the social contract is used exclusively as an analytic device to conceptually understand the reasons for This paper contains material from the author’s book, The Invisible Hook: The Hidden Economics of Pirates (Princeton University Press, 2009). I thank the Editors and two anonymous referees for helpful comments on an earlier draft of this paper. Pete Boettke, Chris Coyne, Dan D’Amico, and Ed Stringham also provided useful suggestions. The financial support of the Kaplan Fund and the Mercatus Center at George Mason University is also gratefully acknowledged. P.T. Leeson () George Mason University, Fairfax, USA e-mail: [email protected] 444 Public Choice (2009) 139: 443–459 government, discuss its substance, and evaluate its legitimacy (see, for instance, Rawls 1971; Buchanan and Tullock 1962; Buchanan 1975). According to William Riker and Itai Sened (1991: 952), for example, “Despite the analytical value of [social contract] theories for the study of the consequences of rights or their normative value to justify enforcement, they are manifestly incorrect as descriptions of events.” Since obviously no society ever had one, “Contemporary contractarians do not argue for the historical reality of a primordial social contract” (Heckathorn and Maser 1987: 144). But maybe they should. Consider the following: I. Every Man has a Vote in the Affairs of Moment; has equal Title to the fresh Provisions, or strong Liquors, at any Time seized, and may use them at Pleasure, unless a Scarcity make it necessary, for the Good of all, to vote a Retrenchment. II. Every Man to be called fairly in Turn, by List, on board of Prizes, because, (over and above their proper Share) they were on these Occasions allowed a Shift of Cloaths: But if they defrauded the Company to the Value of a Dollar, in Plate, Jewels, or Money, Marooning was their Punishment. If the Robbery was only betwixt one another, they contented themselves with slitting the Ears and Nose of him that was Guilty, and set him on Shore, not in an uninhabited Place, but somewhere, where he was sure to encounter Hardships. III. No person to Game at Cards or Dice for Money. IV. The Lights and Candles to be put out at eight a-Clock at Night: If any of the Crew, after that Hour, still remained enclined for Drinking, they were to do it on the open Deck. V. To keep their Piece, Pistols, and Cutlash clean, and fit for Service. VI. No Boy or Woman to be allowed amongst them. If any Man were found seducing any of the latter Sex, and carry’d her to Sea, disguised, he was to suffer Death. VII. To Desert the Ship, or their Quarters in Battle, was punished with Death or Maroon- ing. VIII. No striking one another on board, but every Man’s Quarrels to be ended on Shore, at Sword and Pistol. IX. No Man to talk of breaking up their Way of Living, till each shared a 1000 l. If in order to this, any Man should lose a Limb, or become a Cripple in their Service, he was to have 800 Dollars, out of the public Stock, and for lesser Hurts, proportionately. X. The Captain and Quarter-Master to receive two Shares of a Prize; the Master, Boatswain, and Gunner, one Share and a half, and other Officers one and a Quar- ter. XI. The Musicians to have Rest on the Sabbath Day, but the other six Days and Nights, none without special Favour. This is an actual written agreement, consented to by every member of the society it gov- erned. The members of this society existed in a genuine state of nature before the agreement, which they explicitly created to exit the Hobbesian Jungle, establish political authority, and facilitate social cooperation. “[F]inding hitherto they had been but as a Rope of Sand, they formed [this] set of Articles, to be signed and sworn to, for the better Conservation of their Society, and doing Justice to one another” (Johnson 1726–1728: 210–212). This is a genuine social contract; its creators were early 18th-century pirates who lived and worked under the democratically established political leadership of Captain Bartholomew Roberts. To count as a genuine social contract, a contract must satisfy three criteria: 1. It must be a written agreement between society’s members explicitly for the purpose of establish- ing political authority to facilitate social cooperation. A contract between parties for the Public Choice (2009) 139: 443–459 445 exchange of shoe leather, for instance, is a contract, but is not a social contract because its purpose isn’t to create government. 2. It must bring the contracting members of society out of a state of nature—a situation in which there exists no political authority they can appeal to—to prevent conflict and facilitate social cooperation. If individuals create an agreement that is both recognized and enforceable by an existing government, we have a contract, but not a social contract. 3. Every member of society the contract covers must voluntarily enter into and agree to be bound by this contract. That is, society’s members must explicitly and unanimously consent to the contract. Anything short of unanimous consent means the so- cial contract is not in fact a genuine contract—the product of voluntary agreement. Alleged products of “conceptual unanimity,” “tacit consent,” and so forth, which contractarians of- ten invoke to skirt the logistical difficulties involved with, or historical absence of, fully and explicitly consensual social agreements therefore do not count.1 The United States Consti- tution, for instance, which some individuals signed and explicitly consented to, but most individuals did not—and certainly none who are alive today—does not constitute a gen- uine social contract.2 If it did, we would not say that a genuine, historical social contract is myth. Note that requiring the explicit consent of every member of society to whom a social contract will apply to qualify it as genuine and legitimate is not the same as requiring the consent of every person to whom the contract might or could apply. As Rousseau (1761: Book IV, Chap. ii) put it, “If . there are opponents when the social compact is made, their opposition does not invalidate the contract, but merely prevents them from being included in it. They are foreigners among citizens.” Non-signers aren’t bound by the social contract; but neither may they enjoy its benefits. A contract that satisfies all three of these criteria is a social contract in the strictest sense. It is this social contract that supposedly never founded any society’s government. This paper argues that the myth of social contract is a myth. Early 18th-century pirate so- cieties founded government through written, unanimous social contracts, such as the one re- counted above, which they created in a state of nature expressly for the purpose of establish- ing political authority. Pirates’ social contracts created a system of constitutional democracy based on the same decision-making calculus and with the same effects that James Buchanan and Gordon Tullock’s (1962) contractarian theory of government describes in The Calculus of Consent. Pirates’ constitutional democracy is the “holy grail” of social contract theory. It demonstrates that the contractarian basis of constitutional democracy is more than a mere analytic device or hypothetical explanation of how such a government could emerge. At least in the case of some pirates, Buchanan and Tullock’s social contract theory describes how constitutional democracy actually did emerge.3 In fact, as I discuss below, in one very important sense, pirates’ social contracts were “more genuine” that those forged in Buchanan and Tullock’s theoretical world. As noted 1On the centrality of unanimity to the contractarian approach, see Vanberg (1994, 2005). 2Rhode Island did not even send a delegate to the Constitutional Convention. 3In Buchanan and Tullock (1962) individuals are assumed to negotiate the social contract behind a “veil of uncertainty” (similar to John Rawls’ (1971) “veil of ignorance”) where they do not know what their position will be vis-à-vis others in the post-constitutional stage and therefore bargain from equal positions of power.